Decree reversed and bill dismissed, at the costs of the appellees.

READ and SHARSWOOD, JJ., dissented.

NUISANCE PRODUCED BY NOISE, SHAKING, AND SMOKE: See Wesson v. Washburn Iron Co., 90 Am. Dec. 181, note 187.

INJUNCTION WILL NOT BE GRANTED WHERE RIGHT IS DOUBTFUL: See Hinchman v. Paterson H. R. R. Co., 86 Am. Dec. 252, note 258, where other cases are collected. Nor will it be granted where the apprehended injury is merely contingent: Keiser v. Lovett, 85 Ind. 243, citing the principal case. It is not every injury which will support an action for damages that will entitle the complainant to relief by injunction: Owen v. Phillips, 73 Id. 288, also citing the principal case. It is often a grave question whether as great an injury will not result to the defendant by restraining a lawful business as to the complainant by being left to his remedy at law: Dillworth's Appeal, 91 Pa. St. 250, also citing the principal case.

INJUNCTION AGAINST THREATENED NUISANCES, WHEN GRANTED: See Ryan ▼. Copes, 73 Am. Dec. 106, note 113, where this subject is discussed at length. As a general rule, mischief or damage which is susceptible of compensation is not irreparable: Brown's Appeal, 62 Pa. St. 22, citing the principal case.

PENNSYLVANIA RAILROAD COMPANY v. Books.

[57 PENNSYLVANIA STATE, 339.]

EVIDENCE OF HABITS AND COMPETENCY OF CONDUCTOR IN EMPLOY OF RAILROAD COMPANY, whose coal train ran into the passenger train in which the plaintiff was riding and injured him, is admissible.

WHEN HABIT OF INTOXICATION IN CONDUCTOR IS SHOWN, it raises, in the case of an accident, a presumption of negligence, which stands until it is rebutted.

WHAT AGENT SAYS WHILE ACTING WITHIN SCOPE OF HIS AUTHORITY is admissible against his principal, as part of the res gestæ, but not statements or representations made by him at any other time. And declarasions made by the officers of corporations rest upon the same principles as apply to other agents.

EVIDENCE OF NUMBER OF PLAINTIFF'S FAMILY, OF HIS HABITS, industry, and economy, is inadmissible in an action for injury by negligence, as affecting the question of damages.

SCARCITY OF COMPETENT HANDS DOES NOT EXCUSE RAILROAD COMPANY in employing incompetent or intemperate men to run its trains. And testimony on the part of the company to show the efforts it made to secure competent train-hands is not admissible in an action against it for negli. gence.

EMPLOYEE'S RAILROAD PASS, ON WHICH PLAINTIFF WAS RIDING AT TIME OF ACCIDENT, IS ADMISSIBLE in evidence, and is presumptive evidence that he was an employee of the road.

TO LEAVE MEASURE OF DAMAGES ENTIRELY TO DISCRETION OF JURY is error on the part of the trial court.

DAMAGES FOR PERSONAL INJURY MAY INCLUDE REASONABLE COMPENSATION FOR PAIN and suffering, as well as the expense of medical attendance and the loss of time consequent upon confinement. But, unless the injury has been wantonly inflicted, the damages must be strictly compensatory. EVERY ONE RIDING IN RAILWAY CAR IS PRESUMED TO BE THERE Law. FULLY as a passenger, and the onus is upon the carrier to prove that he was a trespasser.

ACTION for personal injuries. The facts appear from the opinion.

T. Cuyler, and Miller and Doty, for the plaintiffs in error. Parker and G. F. Miller, for the defendant in error.

By Court, SHARSWOOD, J. This was an action by the plaintiff below against the defendants, the plaintiffs in error, to recover damages for injuries alleged to have been occasioned by the negligence of their servants. Nine errors have been assigned, which it is our duty to consider.

The first is, that the court erred in admitting testimony touching the habits and competency of the conductor of a coal train in the employ of the company, which had run into the passenger train and caused the injury. This assignment of error was not pressed, and properly. If by direct evidence it appeared that the conductor was a man of intemperate habits, it would cast upon the defendants the burden of proving that he was not intoxicated at the time, and had used proper care. It is certainly incumbent upon railroad companies to employ none but sober men on their roads. Where a habit of intoxication in a conductor is shown, it raises, in the case of an accident, a presumption of negligence, which stands until it is rebutted.

The second assignment of error is, that the learned judge erred in admitting evidence of statements of the flagman, made subsequently to the accident. The plaintiff proposed to ask a witness if the flagman showed him how far he had gone back to flag the fast line. This was admitted, and an exception sealed. The rule is well settled that what an agent says while acting within the scope of his authority is admissible against his principal, as part of the res gestæ, but not statements or representations made by him at any other time: Shelhamer v. Thomas, 7 Serg. & R. 106; Levering v. Rittenhouse, 4 Whart. 130; Jordan v. Stewart, 23 Pa. St. 244. The admissions of an agent not made at the time of the transaction, but subsequently, are not evidence; thus the letters of

an agent to his principal containing a narration of the transaction in which he had been employed are not admissible against the principal: Hough v. Doyle, 4 Rawle, 291; Clark v. Baker, 2 Whart. 340. Naked declarations which are not part of any res gestæ are mere hearsay, like words spoken by a stranger: Patton v. Minesinger, 25 Pa. St. 393. The flagman himself was a competent witness, but his statements of what he had done were clearly incompetent. There was error, therefore, in the admission of this evidence.

The third error assigned is in admitting evidence of statements made by the vice-president of the company. The plaintiff offered to ask a witness what Mr. Lombaert said about the railroad company receiving pay for carrying the mails. This was objected to, but the objection was overruled and an exception taken. Declarations made by the officers of a corporation rest upon the same principles as apply to other agents. In a case where the admissions of the trustees of a religious corporation were offered in evidence, Chief Justice Tilghman said: "An agent is authorized to act; therefore his acts, explained by his declarations during the time of action, are obligatory on his principal; but he has no authority to make confessions after he has acted, and therefore his principal is not bound by such confessions": Magill v. Kauffman, 4 Serg. & R. 321 [8 Am. Dec. 713]; Spalding v. Bank of Susquehanna County, 9 Pa. St. 28. So it has been ruled that, in an action by a bank, evidence of the parol declarations of the officers of the bank is not admissible for the defendant, without proof of the particular officers being authorized by the board of directors to speak for them, even though it should appear that the board kept no regular minutes of their transactions: Stewart v. Huntingdon Bank, 11 Serg. & R. 267 [14 Am. Dec. 628]. In like manner, declarations made by a person who had been president of a bank, respecting payments made on a note, are not evidence against the bank: Sterling v. Marietta and Susquehanna Trading Company, 11 Id. 179; Bank of Northern Liberties v. Davis, 6 Watts & S. 285. The decision in the case of Harrisburg Bank v. Tyler, 3 Id. 373, does not conflict with these authorities; for the declaration of the cashier was received in that case that the bank had knowledge of a trust, and it was in the performance of those functions which peculiarly belong to that office in the current transactions of its business: Hazleton Coal Co. v. Megargel, 4 Pa. St. 329. This assignment of error is therefore sustained.

The fourth error assigned is, that the learned judge erred in admitting evidence of the number of plaintiff's family, his habits, industry, and economy, as affecting the question of damages. In Laing v. Colder, 8 Pa. St. 479 [49 Am. Dec. 533], it was ruled, in a case of injury to the person, that damages sustained by the plaintiff from the circumstance of his being the head of a family dependent upon him have no necessary connection with the injury. Such damages may or may not follow a temporary bodily disability. Damages of this nature are therefore not direct or necessary, but special, as being possible only, and must be specially averred to let in evidence of them. It is difficult, also, to see what bearing the plaintiff's habits, industry, and economy could legitimately have on the damages. This might be important in a proceeding under the act of April 26, 1855 (Pamph. Laws, 309); but in an action by the injured party himself, they were irrelevant, and tended only to excite feelings of commiseration and sympathy in the breasts of the jurors, and to inflame unjustly the damages, results which in all actions of this character ought carefully to be avoided.

The fifth error is in excluding testimony offered by the defendants below touching the efforts made by them to secure competent train-hands. We think the court was right in excluding this testimony. It was no justification or excuse to the company in employing an intemperate or incompetent man, in a business involving such peril to life and limb, that hands were scarce. For a sufficiently high rate of compensation, sober and competent men are always to be had. Such evidence, if admitted, would necessarily lead to collateral issues far wide of that on trial. We think there was no error in this ruling.

The sixth error assigned is in excluding from evidence the employee's pass, upon which the plaintiff was riding. The ticket produced was in these terms: "Pass S. Books, route agent, an employee of the Pennsylvania Railroad Company." The evidence offered was, of course, to show that the plaintiff accepted and used this ticket. It certainly was an admission by him that he bore to the plaintiffs in error the relation of an employee or servant. It was not indeed conclusive, not an estoppel, if explained so as to show that he was really not in the employ of the company; but, as was alleged, received and used the ticket as a route agent in the service of the post-office department of the government of the United States, under a

contract between that department and the company for carrying the mails. Standing alone, uncontradicted and unexplained, the pass would have been sufficient to show that the relation existed between the company and the plaintiff stated on its face, and it was admissible, no matter what evidence to the contrary had been previously given. The plaintiff in error had a right to have the whole evidence go to the jury, as it would then have been a question for them, and could not have been shut out from their consideration, as it was by the judge in his answer to their seventh point. This assignment of error is therefore sustained.

The seventh error assigned is, that the learned judge erred in his instructions to the jury on the subject of damages, and in his answers on the same subject to the ninth and tenth points presented by the defendants below. After laying down a measure which is not objected to here, and on which, therefore, we give no opinion, he added: "These, we think, would be fair rules to ascertain the measure of damages the plaintiff would be entitled to in this case; but if you can find any better ones than those suggested, you are at liberty to adopt them, as the measure and amount of damages are entirely for you to ascertain, under all the evidence and circumstances in the case." The effect of this language was to leave the measure of damages entirely in the discretion of the jury. The general rule in actions on the case for negligence is, that the party aggrieved is entitled to recover only to the extent of his actual injury. In the case of a suit by the party injured himself, it may, no doubt, include a reasonable compensation for pain and suffering, as well as the expense of medical attendance and the loss of time consequent upon confinement. But in these cases, as well as in those brought under the act of April 26, 1855, unless the injury has been wantonly inflicted, when exemplary damages may be given, the jury must be confined to damages strictly compensatory. "Injuries to the person consist in the pain suffered, and in the expenses and loss of property they occasion. In estimating damages, the jury may consider, not only the direct expenses incurred by the plaintiff, but the loss of his time, the bodily suffering endured, and any incurable hurt inflicted": Per Bell, J., in Laing v. Colder, 8 Pa. St. 481 [49 Am. Dec. 533]. There was error, therefore, in the instruction.

The objection to the answer to the ninth point has not been pressed, and very properly; we see no error in it. The tenth